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HomeMy WebLinkAboutLog132 e e September 11, 2006 Via Email: bni~htinJzale@Co.iefferson.wa.us BARBARA NIGHTINGALE, M.M.A., M.A.S. Associate Planner Port Ludlow Master Planned Resort Jefferson County Dept. of Community Development 621 Sheridan Street Port Townsend, W A 98368 Re: Les Powers' response to PLA's & Trend West's comments to the Log Items Dear Barbara Let me respond to PLA's and Trend West's comments to the Log Items. I focus on the responses to which PLA and Trend West provided substantive comment. My response is identified to the log items. Li49 A. Police Protection. In light of the Sheriffs comments to Olympic Terrace II and Ludlow Cove II confirming the dedicated police protection and the need for at least three full time officers at Port Ludlow, and repeated incidents of burglary in the commercial development of Port Ludlow and vandalism without prompt police response, there can be no question but that PLA's and Trend West's dismissal of the need for additional police protection conflicts the existing log on Ludlow Cove II and the facts. Except for the banks, virtually every office in the commercial section was broken into and its contents ransacked in one all night episode this summer. The break ins were not even discovered until the next day. This clearly confirms the inadequacy of existing police protection considering the size of the community. I request that the police report on this break in be made part of the log. Moreover, PLA agreed in the partial settlement to join with the Port Ludlow community in demanding more police protection. Its entry into the partial settlement agreement confirms that it knows that there is a need for additional police protection. Its statement to the contrary conflicts its obligation thereunder. Finally, it is absolutely clear from the statements made at the workshop that the Trend West project will put additional transient population into Port Ludlow. Trend lOG ITEM # 13 '}.. Page- .I of (~ e e Barbara Nightingale Jefferson County Dept. of Community Development Sepremberll,2006 Page 2 West admitted that it expected the average stay to be only about three days and that the average occupancy to be between three and four persons per unit. It further admitted that it expected to add only about 70 golfers per week to the golf course. This means in a given week there will be on average about 720 different people staying at the Trend West Resort, only ten of which on any given day will be occupied on the golf course. Measured against users, only about 10% of the occupants will be involved in golf. The other 90% obviously must fmd entertainment elsewhere. If the units have more than two occupants as projected by Trend West, at least some of them are likely to be children. It is unlikely that three or four unrelated adults will be sharing units. If, for example, there are 1.5 children per unit, there will be 288 different children at the Trend West Resort weekly. This is about two (2) times the number of children that currently live at Port Ludlow. These children will circulate, that is change in constituency, twice per week. They will have no ties to the community. Their parents will have no loyalty to the community to enforce any kind of behavioral restraints or to stand behind the results of their actions. I am not responding to children; rather, I am remarking about the difference between children with parents with a tie to the community and children with parents without such tie. These estimates are based upon the statements made by Trend West at the workshop. While it might be argued, incorrectly in my view, that the existing community is adequately served with police protection, it is a little hard to see how it would be served if 288 children were emptied into the minimal recreational facilities other than the golf course. Trend West admitted that it provides minimal recreational facilities and relies on local partners to provide same. Without such facilities, the chance of vandalism, or more important, incidents involving young people increase exponentially. Unfortunately, beyond the golf course there are few public amenities available for children. The trails are not actually public. They are maintained by the PL VC and burden private land. While there is a marina, there is only a handful of kayaks and, to my knowledge only one larger boat for charter. Certainly these small offerings do not constitute adequate amenities. There are four restaurants including a pizza parlor. Two of them are operated by PLA. PLA has already shrunk the size of the hotel restaurant from its scope of operation under Pope Resources. It proposes to shrink the size of its free standing restaurant, the harbormaster, in connection with the proposed major revision of the resort plan. It proposes to eliminate the convention center and convert the building into a church. It justifies these actions on the basis of losses it is suffering in the operation of the Inn and Harbormaster or upon the impossibility of competing for convention business with the Indian casinos, none of which have been confirmed by independent audit by Jefferson County. Here, it is important to note that the "flexibility" provision of the Development Agreement is not abstract. It requires a demonstration of change of condition. It further requires equivalence in substitution. The proposal here to substitute a Trend West Resort for a single family subdivision meets neither standard imposed by the Development [\..()G ITEM , -1-1 ')... . .~ Page_ Z- . of e e Barbara Nightingale Jefferson County Dept. of Community Development September 11, 2006 Page 3 Agreement. See Development Agreement, Sec. 3.11. The proposed amendment must be reviewed in terms of the "flexibility" provisions. Where is the justification for the change in the response of PLA? There is only a small amount of beach open to the public surrounding the Inn and contiguous to the town homes. The beach contiguous to Ludlow Cove II is a mud flat, part of a sensitive estuary that the proposed Trend West plan promises to protect from human incursion. The only tennis amenities available to the public were in a state of disrepair and unusable until PLA leased the facilities to South Bay. South Bay improved the facilities at a cost of more than $15,000. However, they are currently available only to South Bay, guests of the Inn, and guests of the golf course. It is neither available to the public, North Bay, or the marina. RCW 36.70A.362 requires the development ofa public resort with public facilities. It is clear that the tennis courts in their current contractual status do not meet this requirement. Moreover, it is far from clear that they will be available to Trend West as an amenity. Does the current status require that a Trend West guest buy eighteen (18) holes on the golf course to use the tennis courts? Where then are the amenities such as the youth center and other recreational offerings that were promised in the Resort Plan set forth in Section 3.901 of the MPR Code. An analysis of the provision MPR Code which it replaces shows that these amenities were the compromise associated with the classification of Port Ludlow as a master planned resort and the grant of additional MERU for residential development. The proposed major revision eliminates all of these promised resort amenities, the very entertainment facilities that would occupy the Trend West visitors not engaged in golfmg. The two (2) proposals must be read together to see what is happening. On the one hand, PLA wishes to convert property zoned single family residential to a private hotel that it will not have to operate; on the other hand, it wishes to eliminate the recreational amenities that would have supported the hotel expansion promised in the resort zone in the MPR Code and therethrough, the Development Agreement. Without a requirement that such amenities be developed, there are no "partners" to provide the discounted coupon entertainment upon which Trend West admits it must rely to entertain its guests. Guests, particularly young guests, who are not entertained, create substantial additional police burdens that according to the Sheriff are not now addressed at all. B. Consent of Port Ludlow Residents to Proposed Amendment No. 1. What is the legal basis for the conclusion that the purchasers of property are not parties to the development agreement in light of its provision stating that any person who acquires from Pope is a party? Let me cite the relevant language. Section 4.2.1 provides that "this agreement shall be binding upon and inure to the benefit of the successors, successors in title and assigns ofPope...and the County." ." Section 4.2.2 provides "Pope shall have the right to assign or transfer all or any portion of the respective interests. . . under this Agreement or in the Pope Property to other parties acquiring an interest or estate in all or any portion of the Pope Property." Section 4.13 provides that "this agreement is made lOG ITEM # /5 '"l- Page ~T of e e Barbara Nightingale Jefferson County Dept. of Community Development September I I, 2006 Page 4 and entered into for the sole protection and benefit of the parties hereto and their successors, successors in title, and assigns..." As to amendment, Section 4.6 provides "this agreement shall not be amended without the express written approval of the County and Pope (or its successors, successor in title and assigns with respect to the property in which they have an interest." Author's italics. PLA and Jefferson County clearly knows that the PL VC and the residents who purchased lots included in the Pope Property are necessary parties to any amendment to the Development Agreement that affects their property rights. Their lawyers drafted the Development Agreement and the PL VC CC & Rs. The question is not whether purchasers of lots included in the Pope Property or grantees under CC & Rs which impress the Pope Property are "assigns" or "successors in title" but which of them "have an interest" ''with respect to the property". PLA reads the term "property" too narrowly. Property includes not only Ludlow Cove II which PLA owns but also rights under CC & Rs (the "PL VC CC & Rs") granted pursuant to the Port Ludlow Master Planned Resort Master Declaration of Covenants, Conditions and Restrictions (the "Declaration") recorded under Assessor's Recording No.435975 that affect Ludlow Cove II and the remainder of the Pope Property. Notwithstanding an amazing statement that there are no CC & Rs that affect Ludlow Cove II, there can be no question that PLA is on notice of the PL VC CC & Rs. The first page thereof states that the recorded document should be returned to Mr. De Sa e Silva, then counsel for Pope Resources and presently counsel for PLA. An examination of the affected parcels and lots shows that it is the same as the Pope Property identified in the Development Agreement. The PL VC CC & Rs recites that its purpose "is in furtherance of a general plan for the overall improvement of the Property and is established for the purpose of enhancing and protecting the value, desirability, and attractiveness of the Property." The parties upon which protection is conferred are "Declarant, its successors and assigns". See PL VC CC & Rs, Sec. 1. The Declarant is Pope Resources and its affiliates. See PL VC CC & Rs, introductory paragraph. The PL VC CC & Rs were recorded simultaneous with and as the next recording number to the Development Agreement. It is clear they are to be read together. Thus, "successors" and "assigns" is clearly the same as "successors, successors in title, and assigns" described in Subsection 4.2.1 and Section 4.6 of the Development Agreement. Given that definition, it is equally clear that the parties entitled to protection include every lot purchaser of lots described in or from property described in the PLVC CC & Rs and as Pope Property in Sec. 2.1 of the Development Agreement. While the PL VC CC & Rs are not for the benefit of the general public or any governmental authority, they are for the benefit of Pope Resources and its successors and assigns that include not only PLA but also all of the purchasers of lots from the Pope Property. This group includes the undersigned. The rights to be protected are not rights affected by democratic principles. They are identified in the Declaration as "property". Their purpose is to enhance and protect the value, desirability and attractiveness" thereof. lOG iTEM # /:1).....- Page Y of e e Barbara Nightingale Jefferson County Dept. of Community Development September 11, 2006 Page 5 To that end the Declaration entrusts architectural and legal review authority over the property subject to the Declaration to the PL VC to act for the benefit of the owners of the Property, including lot owners such as the undersigned. From the grant to the PL VC, it is clear that the PL VC also enjoys the right of an assign of an interest in the Pope Property, a right granted under the Declaration. Because the undersigned and other lot owners and the PL VC are each an assign of Pope Resources under the Declaration and under the Development Agreement as a function of the PL VC CC & Rs, their individual consent to the amendment of the Development Agreement must be obtained. The Development Agreement is not only binding upon successors, successors in title, and assigns of Pope Resources but also inures to their specific and individual benefit. See Development Agreement Subsection 4.2.1. Here, PLA and Trend West have not secured the consent of all of the successors, successors in title, and assigns of Pope Resources as required by Section 4.6 of the Development Agreement. In fact, the PL VC expressly conditioned approval of the Trend West Resort project on the adoption of acceptable CC & Rs covering Ludlow Cove II. Trend West and PLA demurred. Thus, the PLVC has withheld its consent and approval of the Trend West Resort as it is entitled to do under Paragraphs 2 and 5 and Exhibit C of the Declaration. Accordingly, a condition to the amendment of the Development Agreement has not been met. PLA and Trend West have not produced consents of all of the lot owners and the PL VC to the Trend West Resort at Ludlow Cove II. Until PLA and Trend West produce those consents, the Proposed Amendment No.1 cannot be considered by Jefferson County, either quasi-judicially or legislatively. It would be convenient for PLA and Trend West to restrict the parties to the consideration of Proposed Amendment No.1 to PLA, Trend West, and Jefferson County. Unfortunately, it cannot do so under the express language of the Development Agreement, language obviously adopted for the protection of the parties that purchased lots from the Pope Property and are entitled to the benefit of their expectations as embodied in the Development Agreement and the PL VC CC & Rs. LI52 The Final Decision of Jefferson County on Ludlow Cove II. The decision of AHE Galt issued December 7, 2005 is the fmal decision of the County. It vitiated HE Berteig's decision approving the Trend West use as a multifamily use under a CUP. It denied the validity of the CUP. Factually, it held that Trend West Resorts were commercial hotels, albeit for a private group of visitors, and as such, they were not multifamily use under either the 1994 Zoning Code or under the MPR Code. The Galt opinion resolved the status of Trend West both factually and legally. Trend West is a commercial use not permitted in an area zoned single family residential. While PLA has appealed the Galt Decision, it remains the final decision of Jefferson County on the lOG ITEM #/'J~ Page -.!)=-. of e e Barbara Nightingale Jefferson County Dept. of Community Development Sepremberll,2006 Page 6 Trend West use in all matters excepting the SSDP that was separately vitiated by the SHB because Jefferson County failed to follow its own procedures in obtaining fmal approval of same. The Galt Decision has not been reversed; the SHB Decision was not even appealed by Jefferson County or by PLA Accordingly, it is not legally permitted to rely upon the Berteig Decision or even to refer to it as a factual or legal basis for anything relating to Proposed Amendment No.1. While it is possible to amend the development agreement, it is not possible to do so without the consent of the successors, successors in title, and assigns, including as indicated above, both the PL VC and the lot owners who have bought lots in the Pope Property. It is not possible to propose an amendment without all of the parties to the Development Agreement that includes Pope's successors, again, the same property owners. PLA's legal position is untenable as to the identity of the parties necessary to approve Proposed Amendment No.1 without reference to the PL VC and the lot owners of Pope Property. See analysis under LI 49(B). LI 56, 60, 64 A Scope of Hearing. You are not correct. The notice of the hearing indicates that the HE will hold an open hearing on September 22, 2006, at which he will consider as plenary decision maker the application for the SSDP and in an advisory capacity Proposed Amendment No. 1. See LUPO Sections 16B(1) and 19. He must also include as an appellate matter my appeal of the threshold decision to issue an MDNS with respect to the consolidated permit application on Proposed Amendment No.1 rather than to require full SEP A compliance. See JCC 18.40.360(2). I have challenged the Staff Report thereon and its compliance with the requirements ofSEPA, particularly in light of its heavy reliance upon and incorporation of the Staff Report that supported the Berteig Decision that the Galt Decision vitiated as to the various legal and factual grounds recited in the Staff Report. I expect this matter to be placed before the HE in the September 22, 2006 hearing as an appeal based upon my response thereto unless DCD Staff concurs with the views expressed in my response and does not approve the MONS. B. Requirement of Consistency between Development Agreement and Comprehensive Plan. PLA is simply in error that a development agreement need not be consistent with the comprehensive plan. RCW 36. 70B.170(1) provides in relevant part: "A development agreement shall be consistent with applicable development regulations adopted by a local government planning under chapter 36.70A RCW." RCW 36.70A040(4)(d) provides in relevant part: "the county...shall adopt a comprehensive plan and development regulations that are consistent with and implement the comprehensive plan...." Chapter 36.70A, RCW is the Growth Management Act. It operates through comprehensive plans adopted by the counties. The comprehensive plans are implemented by development regulations adopted by those counties. Development regulations must be "consistent with and implement the comprehensive plan". Development agreements are permitted but "shall be consistent with applicable bOG \1e,Wl J)."'-- ~ *~o,~ page~ e e Barbara Nightingale Jefferson County Dept. of Community Development Sepremberll,2006 Page 7 development regulations. . ." Here, the applicable development regulation is the MPR Code. It was adopted under and recites that it is consistent with the Jefferson County Comprehensive Plan. No possible good faith argument may be made along the lines of that advanced by PLA. Nor is it a legitimate extension from existing law. Ifmade in a judicial environment, this argument would be subject to sanctions under CR 11. The Development Agreement must be consistent with the Development Regulation which itself must be consistent with and implement the Comprehensive Plan, a statutory creature of the GMA. C. Effect ofMPR Code on Proposed Amendment No.1 under Development Agreement. The development regulation that controls is the MPR Code adopted as Ordinance 08-1004-99 and now codified under Article 17, JCC. It was adopted prior to the UDC and is not subject to the procedures of the UDC, including modification of development standards, except for SEP A compliance. The Development Agreement specifies that the MPR Code applies to land use and zoning on the Pope Property, including Ludlow Cove II. Section 3.1 of the Development Agreement provides: The permitted land uses, regulatory standards and density standards for development within the Pope Property are set forth in the Port Ludlow MPR Zoning Code chapter of the Jefferson County zoning code, attached as Appendix A. Proposed Amendment No.1 does not purport to amend Section 3.1 of the Development Agreement. It creates a land use that clearly violates the MPR Code, itself binding upon the Pope Property. Even if Proposed Amendment No.1 were adopted, it would remain subject to Section 3.1 of the Development Agreement and the use otherwise permitted by Proposed Amendment No. 1 would not be permitted because of its conflict with the MPR Code. D. Nonapplicability of Exclusion from Vesting in Development Agreement Section 3.13. Ludlow Cove II is vested as single family residential under the 1994 Zoning Code and under the MPR Code. This is the finding of the Galt Opinion. It is consistent with the HE Berteig's 2002 Opinion. Assuming, arguendo, that by waiving 1995 vesting, Ludlow Cove II is vested under the Development Agreement, the exception of Section 3.13 for conditions and uses not described in the Development Agreement is inapplicable. Section 3.1 of the Development Agreement provides that the MPR Code sets all conditions on "land uses, regulatory standards, and density standards", It makes specific reference to Appendix A to the Development Agreement that sets forth the MPR Code. The application of specific zoning to the Pope Property is set forth in Exhibit 2 to the Development Agreement. Exhibit 2, taken from the Comprehensive Plan, describes Ludlow Cove II as single family residential. Both Exhibits and Appendices are incorporated by reference in the Development Agreement. See Development Agreement Section 4.7. Section 3.1 of the MPR Code sets forth the allowed density, height, type of ownership, and specific uses that are permitted in areas of the Pope Property zoned single lOG ITEM #~/J~ Page.:J of e e Barbara Nightingale Jefferson County Dept. of Community Development Sepremberll,2006 Page 8 family residential. They do not include multifamily use in the form of stacked condominiums or residential apartments or commercial use such as hotels and resorts. Even if a Trend West Resort were a time share condominium, which it is not, it would not be a permitted use under specific provisions of the MPR Code. Since the conditions relating to land uses, regulatory standards, and density as to single family residential are specifically set forth in the MPR Code, they are not subject to the exception of Section 3.13 of the Development Agreement allowing for vesting under subsequent land use laws for matters not set forth in the Development Agreement. E. Nonapplicability of the UDC. Because the exception in Section 3.13 to vesting under the MPR Code does not apply, no argument can be made that the provisions of the UDC, JCC Sections 18.40.850, et sequ., cited by PLA apply to permit an amendment to land use laws on Ludlow Cove II through Proposed Amendment No.1. Even if the UDC applied, the provisions cited by PLA do not permit the amendment to land use law or excuse consistency with the Comprehensive Plan urged by PLA. The provision upon which PLA obviously relies, JCC 18.40.860(5) provides as follows: Consistency with Unified Development Code. The development standards and conditions set forth in a development agreement shall be consistent with the applicable development regulations set forth in the Unified Development Code, except in the case of a master planned resort (which requires a site-specific Comprehensive Plan amendment), where adopted standards may be modified by the development standards contained in the agreement, so long as all project impacts have been adequately mitigated. The problems with PLA's creative reading of this provision are apparent from careful review. First, the only reason that a master planned resort is excepted is that it is created by a site-specific Comprehensive Plan amendment". To modify the "site-specific Comprehensive Plan amendment", one must amend the "Comprehensive Plan". Such amendments must be proposed under a one year statutory cycle that has not been met by Proposed Amendment No.1. Nothing in this language suggests that the Comprehensive Plan may be amended through the Development Agreement. Second, the exception to development standards is an exception to the UDC. The UDC, other than SEP A provisions, does not apply to the Port Ludlow MPR. As noted in your correspondence with the HE, the UDC was adopted after the Development Agreement was entered. The UDC is codified as Article 18, JCC. The MPR Code is codified as Article 17, JCC. It is not part of the UDC. Hence, because the UDC does not apply at all except as to matters not considered in the Development Agreement, and by its own terms, JCC 18.40.860(5) is limited to modifications to the UDC and not other provisions of the Jefferson County Code such as the MPR Code, JCC 18.40.860(5) does not provide one scintilla of support for the proposition that Proposed Amendment No.1 can modify zoning of Ludlow Cove II under the Zoning Code, the MPR Code or the Comprehensive Plan. Accordingly, PLA's argument that the land use law applicable to Ludlow Cove II may be modified to LOG ITEM /1;3 ?- Page ~ of e e Barbara Nightingale Jefferson County Dept. of Community Development September 11, 2006 Page 9 permit a Trend West Resort must be rejected even if advanced under the UDC which itself in this instance is inapplicable. F. String Cites to Other Municipal Authority. PLA's string cites to other municipal authority does not support any proposition it advances in favor of Trend West. The authority that is municipal and not related to counties has absolutely no legal application. Counties are regulated under different provisions of the Revised Code of Washington than municipalities. To the extent county authority is cited, it has no application because it does not deal with situations vested prior to its applicability and does not contain language parallel to JCC 18.40.860(5) that clearly shows the lack of applicability of the UDC to Proposed Amendment No. 1. Finally, nothing in the string cite to municipal authority indicates whether any of the provisions have been judicially reviewed or reviewed by any of the Growth Management Hearing Boards, the ultimate test of their application. The string cites at most are an invitation to a diversion from the issues. LI67 Hotels and the MPR. PLA's analysis of Item 67 misses the mark. The author identifies that hotels are permitted uses within the MPR. That is true but the rest ofh toe story is that hotels are permitted only in the resort section, if public, and in the commercial section. Ludlow Cove II is zoned single family residential. The designation of 1,800 acres at Port Ludlow as a master planned resort did not authorize Pope Resources to build whatever it wanted wherever it wanted on the Pope Property. Section 3.1 of, Exhibit 2 to and Appendix A to the Development Agreement, dispel that illusion. Hotels are permitted only in areas in the Pope Property zoned for their use. The grant of master planned resort status was not a carte blanche to Pope Resources to do whatever it wanted. It was granted with specific limitations that PLA, a successor of Pope Resources sharing common counsel would like to ignore. The proper issue is whether a hotel can be legally situated on an area of the Pope Property zoned single family residential. Jefferson County through the Galt Decision has already answered this question in the negative. LI 68, 70 A. Allowabilitv of Use. Let me dissent several propositions made in response to Mr. Schmitz. First, while ARE Galt did not address the question whether the Development Agreement may be amended, he did find as a fact that Trend West is a commercial hotel operation and not single family or multifamily housing. This finding is grounded on the transience of the use and the nature of the operation. It is factual. Against this backdrop, PLA and Trend West seek to obtain consent by amending the Development Agreement through Proposed Amendment No. 1 to define time share LOG ITEM #112 ?- Page _9 of e e Barbara Nightingale Jefferson County Dept. of Community Development September 11, 2006 Page 10 condominiums as a type of multifamily housing, to permit timeshares condominiums as multifamily use, and to increase the allowable density on Ludlow Cove II from four (4) to nine (9) units per acre. . Correct me if I misapprehend the import of the amendment. Ignoring for the moment the question whether Trend West is a time share under the defmition contained in Proposed Amendment 1, it is not a permitted use as long as its overall operation remains commercial under the defInition found to apply by AHE Galt. Proposed Amendment 1 does not change this result. If it still looks like a duck and quacks. It is a duck. The use is prohibited by the fmal action of Jefferson County on Ludlow Cove II, the Galt Decision. B. Trend West Standing. I dissent that Trend West has standing. It has a conditional right to purchase the property under a purchase and sale agreement that is conditioned on the County's consent to the development on the property. It is not the owner of the property until the sale closes. The sale has not closed. LI 75 Approval of PL VC. While I was not present at the meeting, I have seen the communication and the PL VC response. Mr. Stone is in error. The PL VC approved the project conditioned upon the adoption of suitable site specifIc CC & Rs. Trend West refused to do so. Mr. Stone has no authority to represent the PL VC outside the scope of its action. It acted. Mr. Stone may have been in a minority that disagreed with the PL VC's action. He is not in a legal position to represent other than its action. After all, we do not accede to the methodology of Mr. Obrador. Ifa person, including a representative, urges a position that is not approved, he cannot represent that he speaks for a subgroup that happens to be a majority. Mr. Stone's views must be disregarded to the extent they purport to speak for the PL VC. LI 86 Property Rights in the PL VC CC & Rs. I concur with the question. It is the issue raised by the PLVC in its conditional approval. What happens if Trend West closes the operation? What type of use is then permitted? What has the response that Trend West will be built all at once to do with the need for CC & Rs? Moreover, how can the County even comment on the CC & Rs in light of Sec. 4.20 of the Development Agreement? The County's duty is not to permit a use that conflicts CC & Rs. Since the PL VC has acted under CC & Rs covering Ludlow Cove II by granting or impressing CC & Rs over the Pope Property including Ludlow Cove II, the County cannot vitiate that decision without violating property rights. See Vikin~ Properties; RCW 37.70A.020. The County's duty not to enforce CC & Rs is not the same as its legal duty not to violate them except for a public purpose and with compensation to affected lot owners. LI 93 LOG ITEM *-.1 '5 >- pageL-a of ':I' e e Barbara Nightingale Jefferson County Dept. of Community Development September 11, 2006 Page 11 Proper Procedure to Approve Trend West. I do not concur that the BoCC is permitted simply to amend the Development Agreement to permit a use that is not permitted under applicable zoning as vested or as provided under the Comprehensive Plan. I think the proper action would have been an amendment to the Comprehensive Plan. This procedure contains adequate safeguards for property rights. PLA seems to confuse Washington with Connecticut. Washington requires a public purpose when taking someone's property and providing its use to another. More economic activity and more tax revenues are not a public purpose. See the dissent in the Kelo case. What PLOA proposes is that Jefferson County legislatively takes of the property rights of the lot owners in the Pope Property and of the PL VC in each case under the PL VC CC & Rs. Those rights cannot be taken even legislatively without compensation and public purpose. PLA has provided no basis for either. LI98 Conflict in PLA's Position on Vesting. PLA's response is totally off the mark. If Ludlow Cove II vested under the January, 1995 application as found by HE Berteig and ARE Galt, and then its use cannot be amended by amendment of the Development Agreement. The Development Agreement simply would not apply. The Zoning Code is not even an appendix to the Development Agreement. Its use could be modified only by rezoning the property, something PLA and Trend West are obviously loath to do. ARE Galt found that the proposed use, commercial, is not permitted under the 1995 zoning or any CUP that could or did issue with respect thereto; he also held the same true under the Development Agreement. If Proposed Amendment 1 purports to waive the 1995 vesting, and here I think this is only permitted if all of the persons with rights in the vesting of the property are represented, including the PL VC and the lot owners in the Pope Property, then the vesting will be controlled by the Development Agreement and MPR Code, a result I think obtains anyway because I believe the application lapsed and was resubmitted in December, 1997. If the Development Agreement and MPR Code apply, the zoning is specified to the property and, as ARE Galt also found, excluded commercial ventures such as Trend West. Either way, the proposal to have the Development Agreement apply for the limited purpose of permitting an otherwise impermissible use flies in the face of land use law and continues the mockery of property rights that have been the case in Jefferson County. PLA wishes Jefferson County to ignore that a number of us bought property directly or indirectly from Pope or PLA and that we have a property rights in the development of the MPR under the Development Agreement, MPR Code, and the PL VC CC & Rest. What happens to our rights? PLA asks the County to " "get to yes" for its benefit, a philosophy followed by prior commissioners and admitted to me by one of them before losing his position in the last election. As to consistency with the Comprehensive Plan, please note the language of Resolution 42-00, fmding 6, Ordinance 08-1004-99, Recitals 2, 3, and 7, and Sections 1.20 and 3.1 of the Development Agreement and the requirements that development agreements must be consistent with their development regulations and that the LOG ITEM #/:/"1- . Page. 1/ of e e Barbara Nightingale Jefferson County Dept. of Community Development September 11, 2006 Page 12 development regulations must be consistent with and issue under the Comprehensive Plan. PLA's response here is disingenuous and legally erroneous. As to existing CC & Rs, the adequacy of police protection, and as to the rights of purchasers as "successors in title", see my comment to LI 49. As to Mr. Stewart's position, note the SSDP was declared invalid because the County violated its own procedures in adopting same. Mr. Stewart's comments stand unless they have been substantively resolved. LI 101 A. SEP A. I read the SEP A report. It is based on the application that AHE Galt voided. Since, as you admit this is a new application, you need to respond with a new report, not just the old report. If there was new consideration, I did not see it in the report. Perhaps that can be identified to me. Also, I remain incredulous that an obvious commercial use as a private hotel can be approved without the protections of a zoning change, a modification requiring the procedures applicable to Comprehensive Plan amendments. B. The Time Share/Condominium Issues. As to the time share/condominium issue, the statutory and Proposed Amendment 1 definitions of time shares are not met. There is no right in any person to use any unit for any period during any three year period. The owners of vacation units do not have ownership in the units or in any right to use particular units. Trend West admitted this. An examination of the description of the Trend West use is helpful. Trend West admitted in the hearing that members of its vacation club do not own interests or rights of use in any specific unit in any resort operated in the Trend West system. Rather, they own annually renewable vacation points that may be traded alone or with additional cash for the use of units in the Trend West resorts based on scheduling. The members pay annual fees that are used to defray costs of maintaining all of the six thousand or so recreational units in the various Trend West resorts. There are over two hundred fifty thousand members. Trend West admission is fatal. To be a condominium, there must be a person that owns a divided real property interest in the condominium unit itself and an undivided real property interest in the common areas associated with the condominium unit. See RCW 64.34.020(9) provides in relevant part: Condominium means real property, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real property is not a condominium unless the undivided interests in the common elements are vested in the unit lOG ITEM # / 1..).- Page /"2-_ of__ - e e Barbara Nightingale Jefferson County Dept. of Community Development Sepremberll,2006 Page 13 owners and unless a declaration and a survey map and plans have been recorded pursuant to this chapter. This defmition is adopted in the Development Agreement. The Subdivision Ordinance, Ordinance 04-0526-92 is an unlisted appendix to the Development Agreement. Section 2.50(11) thereof adopts Chapter 64.34 RCW by reference in the definition of condominiums. The Comprehensive Plan at G-4 similarly defines condominium. It requires "separate ownership of individual units and that "all unit owners have a right in common to use the common elements". Since under the Trend West plan members are not unit owners, the units cannot qualify as condominiums. It is clear that the use proposed by Trend West is not a time share or a condominium under state or Jefferson County rules. Even if Proposed Amendment No.1 were adopted, it would not protect the use proposed by Trend West. Trend West sells annually renewable vacation points; it does not sell time shares or condominiums. When Proposed Amendment No. 1 adopts the state statutory definition that itself does not include the product that Trend West sells, it is a little hard to understand how the adoption of Proposed Amendment No.1 will permit the approval of the Trend West Resort. I ask that you carefully read the Galt Decision that accurately makes findings on this issue as well as the literature upon which it was based that are part of the Log and the admissions of Trend West at the workshop that clearly exclude the Trend West Resort project from treatment as a time share or condominium, Le. a conditionally permitted use under the Zoning Code. C. SEPA Compliance. PLA's remarks concerning entertainment and their applicability to SEPA are wide of the mark. Entertainment is a matter subject to SEPA. Trend West has admitted that they propose a use based on the availability of entertainment that Trend West itself does not provide. The entertainment in question is part of the Resort Plan set forth in MPR Code Sec. 3.901. It was clearly contemplated in the expansion plan embodied in the MPR Code and contemplated in the Development Agreement. Trend West's needs, here, are no different than any other commercial hotel. They are admittedly not provided by Trend West. They are being eliminated in the proposed major revision to the Resort Plan. These events must be read together to see the impact. Seen together rather than fragmented in violation of SEP A, it is clear that the proposed MDNS is not adequate as to the admitted deficiency relating to entertainment. Let me make a few remarks in closing. Don Marcy should not be permitted to present any position. Trend West is not an owner of Pope Property or even property within the Port Ludlow MPR. The right to purchase is not ownership. Interested persons are persons who have ownership of property. If Mr. Marcy is permitted to represent Trend West, then Friends of Port Ludlow, a Washington Not for Profit Association demand the opportunity to be heard and represented. It represents the residents in connection with environmental and social effects of proposed developer and Jefferson County actions. LOG ITEM # /:1~ PageD of e e Barbara Nightingale Jefferson County Dept. of Community Development September 11,2006 Page 14 I further direct your attention to the requirements of the UDC and the GMA as to zoning changes. Zoning changes are modifications to the Comprehensive Plan. This is obvious from statements in the Development Agreement referring to the Exhibits as taken from the Comprehensive Plan. A comprehensive plan is subject to specific statutory and ordinance requirements with respect to amendments. They may be proposed only one time each year. See RCW 36.70A130(2)(a). They are subject to an extensive hearing and public input process. See RCW 36.70A035 and 36.70AI40. The notion is that involvement by the residents is critical when their rights in property may be affected. The UDC follows the statutory requirements. JCC 18.45.010(2) provides for public input. JCC 18.45.020 provides for an annual review of proposed amendments and emphasizes public input and hearings. Proposed Amendment No. 1 does not fall within an exception to the annual review permitted by JCC 18.45.030(1). It was simply not timely submitted as a proposed amendment to the Comprehensive Plan. The reason is obvious. It is the same as the reason why PLA has not pursued its judicial remedy for which it filed under LUPA It does not anticipate approval if the formal process allowing for public comment is followed. Since the application for a Comprehensive Plan amendment was left open through March to permit PLA to file just such an amendment and since it did not do so but rather and simultaneously filed to amendment the Development Agreement, it should seem obvious that PLA does not believe its proposal will withstand public scrutiny and seeks to slide it unreviewed under the door. It is the duty of Jefferson County to follow procedures designed to protect public input. It failed to do so in connection with the SSDP issued by Jefferson County without AHE review. The SHB responded to the undersigned's petition by vitiating Jefferson County's action as violative of its own procedures and as not reflecting the final action of Jefferson County. The proposal before the BoCC is the same. PLA seeks to avoid formal review of its proposal in the hope that no one will be looking and it will slide through in the same manner as the manifold prior violations of Pope Resources and PLA. It is for DCD and Jefferson County to do their job in this instance and protect Jefferson County from costs and its citizens from being abused by a developer that cares not a whit about property rights that Jefferson County is bound to uphold in favor of the residents under the GMA and particularly RCW 36.70A020. What we have here is a travesty. No person with the IQ ofa gnat could be confused about the nature of a Trend West Resort. ARE Galt hit the nail on the head. A Trend West Resort is a hotel, a commercial venture, albeit private. Do you harbor any illusions that Trend West as a subsidiary of Cendant, a publicly traded corporation, is in a business other than that of making a profit for its shareholders? Do you really think this deal is substantively different than a Marriot Resort or a Loew's Resort or a resort of any other developer using vacation members' money to pay for capital infrastructure and upkeep? Do you think Jefferson County can continue to ignore the obligation to put $500,000 in cost of police officers and facilities at Ludlow Bay in the aftermath of the massive burglary and repeated vandalism when the developer seeks to put an unregulated resort without entertainment amenities at Ludlow Bay in an area identified as single lOG ITEM # /3~ . Page /Y of . . ~ Barbara Nightingale Jefferson County Dept. of Community Development Sepremberll,2006 Page 15 family residential? The amount of protection, even without Trend West, and the cost has been confIrmed by the Jefferson County Sheriff. What is wrong with this picture? The notion here is that the laws that govern land use are there to protect the persons who live in the affected zone. They are not simply something to work around for the benefIt of the developer. They cannot be traded away for current tax dollars at the expense of the residence. They are not a cup of porridge. Property owners such as the undersigned rely upon Jefferson County to act in their interest and not just that of the developer. I would like not to be disappointed. I expect, hopefully not in vain, a fair hearing where the results are not predecided on the basis of expediency. PLA's response and some of the correspondence with Jefferson County have raised question as to the constituency of the log for purposes of the September 22d hearing, the hearing before the BoCC and appeal. I am under the impression PLA wishes to limit the record to exclude the record relating to ARE Galt's decision and the record relating to the Shoreline Hearing Board decision. In light of your intent to rely upon the staff report from the earlier record to support the MDNS and in light of the substantive issues addressed in the earlier logs, I formally request that the log for this consolidated permit application and review, that is the log for Proposed Amendment No.1 and the accompanying SSDP include all of the logs relating to and leading to HE Berteig's decision of September 2,2005, ARE Galt's decision of December 7,2005, the Shoreline Hearing Board petition in response to HE Berteig's decision and its disposition, and the log for the original application through the July 2002 hearing before HE Berteig, and, if not otherwise included, the Development Agreement with exhibits and appendices and the PL VC CC & Rs as described in this response. Because this matter is likely to be the subject matter of litigation, the record should be complete. I want Jefferson County carefully to review the situation. It is invited to undertake a litigating position that conflicts with ARE Galt's decision, the fInal action of Jefferson County on the subject matter. The issues raised by the proposal involve not only land use decisions but also constitutional issues relating to property rights and the basis and cost of taking property from private landowners for the benefIt of a competing landowner. They involve vesting and the rights of the residents to vest in the land use laws in effect when the subdivisions were proposed. They involve contract rights of purchasers from Pope Resources and PLA under the Development Agreement. These various rights will be litigated at great cost to the residents and to Jefferson County. They are not costs Jefferson County or the residents should bear. Rather, they are costs that should be incurred by PLA to prove entitlement prior to consideration of the proposal. Why is it that Jefferson County should pay when it does not even stand to collect a room tax on what is obviously a hotel? Why should residents such as the undersigned be forced to expend time and treasure fIghting issues that become ripe only if there is evidence the proposal is procedurally legal? LOG ITEM # 13-;- Page ._/S"' of .. .. . . Barbara Nightingale Jefferson County Dept. of Community Development Sepremberll,2006 Page 16 Please consider these additional comments before issuing a staff report. I commented to the proposed MDNS. I have not seen a fmal decision on this matter. My comments stand and should be sent forward as a petition to the HE if a decision in conflict therewith has been made. Thanks for your consideration Les Powers 44 Heron Road Port Ludlow, W A 98365 LOG ITEM # IJ?- Page /~ of_L~